"THE COURT: Mr. Birnbaum I have an advice of rights form. Do
you want me to read that to him or would you waive?

"MR. BIRNBAUM [Appellant's Counsel]: Your Honor I'll waive
the reading of the advice of rights but Mr. [B.] has asked me to point out
to the Court that he's been in custody more than five days and that he was
suppose to have been let out, this hearing was supposed to [be] held
with[in] five days and he's indicated that he would like to put on the record
that he--he needs to, that the case should be dismissed.

"THE COURT: Alright, it's so noted."

The court, after receiving evidence, subsequently entered the order of commitment.

On appeal, appellant contends that the trial court erred in determining him
to be chronically mentally ill, because he was not interviewed by a mental health
investigator before the commitment hearing. The state disputes that issue but concedes
that "this case should be reversed and remanded based upon the trial court's failure to
fully advise appellant of his rights under ORS 426.100." We accept the state's concession
and, consequently, do not reach and address appellant's arguments. Cf. State v. Jones,
129 Or App 413, 416, 879 P2d 881 (1994); id. at 417 (Riggs, J., concurring); id. at 419
(Haselton, J., concurring) (addressing effect of state's concession of error on court's
exercise of discretion to reach and correct "plain error" under Ailes v. Portland Meadows,
Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991)).

The trial court's failure to advise appellant of his rights under ORS
426.100(1) was "an error of law apparent on the face of the record." ORAP 5.45(2). See
State v. May, 131 Or App 570, 888 P2d 14 (1994); State v. Allison, 129 Or App 47, 877
P2d 660 (1994). In May, we considered whether a lawyer's failure to object to the court's
failure to advise the allegedly mentally ill person of her hearing rights waived any error in
that regard. We concluded that it did not:

"[A] lawyer's failure to object, standing alone, does not constitute a waiver
of the right to be advised of the rights pertaining to the conduct of a civil
mental commitment hearing. Those are mandatory advisements specifically
designed to ensure that the alleged mentally ill person receives the benefits
of a full and fair hearing. The court must either advise the alleged mentally
ill person directly regarding those rights or conduct an examination on the
record to determine whether a valid waiver of the right to be advised has
been knowingly and voluntarily made. Here, the court neither advised
appellant nor conducted any such examination." May, 131 Or App at 571
(emphasis added).

We note, moreover, that, given May, counsel's "waiver" differed materially
from the appellant's stipulation to commitment in State v. Waters, 165 Or App 645, 997
P2d 279 (2000). In Waters, the stipulation pertained to the sufficiency of evidence to
support commitment and did not encompass a waiver of the recitation of the appellant's
hearing rights. We declined to consider the appellant's unpreserved challenges to that
stipulation, observing, inter alia:

"Those alleged errors are exactly the type of errors that never would have
occurred had appellant not affirmatively invited them. In other words, no
stipulation could have occurred had appellant or his counsel questioned the
propriety of such a stipulation in the trial court." 165 Or App at 651.

Here, in contrast, counsel's expression of "waiver" merely triggered the court's ensuing
obligation under May to conduct the prescribed "examination of the record" into whether
waiver was, in fact, knowing and voluntary. That is, when faced with counsel's ostensible
waiver of the advice of rights, the court had an independent judicial obligation to inquire
of appellant as to the voluntariness of that purported "waiver." Without that inquiry, the
"waiver" was ineffective, and the court was required to advise appellant of his rights.

The state concedes that the advice required by ORS 426.100(1) (4) was not
given in this case. The remaining question is whether the requirement under the statute
was waived, so that the involuntary commitment order should be affirmed. A "waiver" is
a voluntary relinquishment of a known right. When a right under a statute is waived, the
effect is to satisfy the purpose of the statute. The purpose of ORS 426.100(1) is "to
ensure that all allegedly mentally ill persons get the benefit of a full and fair hearing
before that person is committed." State v. Allison, 129 Or App 47, 50, 877 P2d 660
(1994). (5)

The majority holds that the legislature intended that no waiver by counsel of
an alleged mentally ill person of an explanation of rights under ORS 426.100(1) even in
the presence of the alleged mentally ill person will ever be effective in an involuntary
mental commitment hearing. According to the majority, the trial court must either give
the advice in the language of the statute or make an inquiry of the alleged mentally ill
person to ascertain that he or she is aware of the rights under the statute and that the
person gives them up voluntarily before the requirement under the statute is deemed
waived.

The majority's holding in this case and our opinion in State v. Buffum, __Or
App__, __P2d__ (April 19, 2000), reach inconsistent interpretations of ORS 426.100(1)
about the role of an alleged mentally ill person's counsel in an involuntary commitment
proceeding. In Buffum, the alleged mentally ill person argued that the advice that the
court gave her was insufficient to satisfy ORS 426.100(1) because it did not advise her of
what the state had to prove in order to demonstrate that she was "mentally ill" for
purposes of an involuntary commitment. The trial court told the alleged mentally ill
person that "[i]t will be the state's burden of showing that you are mentally ill, as that
expression is defined in the statutes." We held that advice sufficient under ORS
426.100(1) because her counsel could explain the requirements of the law to her.

"Further, ORS 426.100(1) must be viewed as part of a complex
statutory scheme that serves to protect the rights of allegedly mentally ill
persons and not as the sole source of protection. Most importantly, ORS
426.100(3) provides for the right to representation by and appointment of
qualified counsel--a right that is virtually more difficult to waive than is the
corresponding right of defendants in criminal cases. It belabors the obvious
to say that an attorney who, in the words of ORS 426.100(3)(a), must
possess 'skills and experience commensurate with the nature of the
allegations and the complexity of the case,' will be fully aware of the legal
and evidentiary particulars that the majority holds the court must include in
its preliminary advice to the allegedly mentally ill layperson." Buffum,
__Or App at__ (slip op at 4).

Our holding in Buffum necessarily implies that the advice from an alleged
mentally ill person's counsel can supplant the advice under ORS 426.100(1) when the
person is informed of the substantive requirements for an involuntary mental
commitment. (6) But under the majority's ruling, the waiver of an alleged mentally ill
person as to the advice of rights required under ORS 426.100(1) spoken through the lips of counsel while in the presence of the alleged mentally ill person is without efficacy.
The majority provides no rationale for its holding other than its reliance on State v. May,
131 Or App 570, 888 P2d 14 (1994), for why the legislature would have contemplated
such a distinction, and I am aware of none. May is a per curiam opinion in which the
state conceded that, under Allison, the trial court was required to give the advice under the
statute. However, the state contended that the trial court's failure was waived by the
alleged mentally ill person's counsel's silence when he did not make any objection to the
continuation of the proceeding. We rejected that argument, saying that the court was
required either to give the advice or to conduct an examination on the record regarding
any waiver. This case is quite different from May because, here, counsel made an express
waiver of the requirements of the statute during the hearing and on the record. An
express waiver satisfies the legislature's goal under ORS 426.100(1) of apprising the
alleged mentally ill person of what he or she must defend against. It is difficult to
conceive why counsel's waiver in this case is any less enforceable than any other waiver
made by counsel on the record during trial in any other kind of case. (7)

2. May does not describe the content of the required inquiry. Ironically, a
reasoned inquiry into whether the person to be committed has knowingly and voluntarily
waived the reading of rights may well require a recitation of the rights themselves.

3. The dissent takes issue with our reasoning, asserting that (1) our analysis
cannot be squared with State v. Buffum, 166 Or App 552, ___ P2d ___ (2000); and (2) in
the absence of an explicit legislative directive, a requirement of knowing and voluntary
waiver should not be judicially implied. Both of those premises fail.

First, Buffum was qualitatively different. There, the question was not
whether the court had given any advice of rights, but whether the court conveyed
sufficient information to make that advice of rights meaningful. As we explained in
Buffum:

"Appellant and the dissent also seek support in State v. Allison, 129
Or App 47, 877 P2d 660 (1994). We held in that case that, notwithstanding
the fact that the allegedly mentally ill person was represented by counsel
and had 'stipulated to the facts and to his commitment,' id. at 50, the trial
court committed reversible error by failing to provide advice pursuant to
ORS 426.100(1). Allison is simply inapposite. It says and suggests nothing
about the substance of the information that a court must provide when it
does advise an allegedly mentally ill person pursuant to ORS 426.100(1)."
166 Or App at 557 (emphasis in original).

Thus, the issue in Buffum differed materially from that in Allison and May--and this case--where the court gave no advice of rights.

Second, the dissent's real dispute is with May. Even if, as the dissent
implicitly suggests, this is an area inviting wholesale legislative overhaul, the fact remains
that, in May, we did impose a requirement that the court engage in "on the record"
inquiries into whether an ostensible waiver of the advice of rights is, in fact, knowing and
voluntary. Unless we are going to overrule May, that is the law.

5. The holding in Allison is predicated on the understanding that compliance
with ORS 426.100(1) furthers due process of law under the Fourteenth Amendment. 129
Or App at 49. A stipulation by counsel in the presence of the alleged mentally ill person
in the hearing and on the record does not impinge on due process.

6. We held in State v. Waters, 165 Or App 645, __P2d__ (2000), that a
stipulation by the alleged mentally ill person's counsel regarding the sufficiency of the
evidence to support an involuntary commitment will not permit a challenge to the
sufficiency of the evidence on appeal because, by the stipulation, the alleged mentally ill
person invited the court to make the commitment. The import of that holding is that the
liberty interests of the alleged mentally ill person are not necessarily impinged by the
procedure of permitting counsel as the person's representative to enter into the stipulation.

7. According to the majority, the issue in Buffum is "qualitatively different,"
from this case, because here, unlike in Buffum, the court gave no advice of rights. __Or
App at__ (slip op at 4 n 3). That is a distinction without a substantive difference.
Whether an alleged mentally ill person is informed of the legal requirement for
involuntary commitment by the court, or by his or her counsel, the result is the same; the
person is given information that provides the necessary knowledge to marshall a defense
to the allegations.

9. When the legislature wants to require a personal examination of a party by a
trial court or attach special requirements to a waiver, it knows how to enact a statute that
provides that kind of requirement. See, e.g., ORS 135.360 which requires a trial court to
make inquiry of a defendant in person regarding a proposed guilty or no-contest plea to a
criminal charge. See also ORS 136.001(2) (requiring that the waiver of the right to be
tried by a jury trial occur in writing).